- When First Amendment experts say “First Amendment exception,” they’re generally referring to the limited, historical set of exceptions to the First Amendment that allow the government to limit speech based on its content.
- The exceptions aren’t exceptions to the proposition “the government can’t do anything to restrict anything that might be understood as speech,” because that’s not the rule.
- When we say “this is a First Amendment issue” or “the First Amendment applies to this dispute,” we’re saying “there’s a set of law based on the First Amendment that you have to apply to this dispute to resolve it.”
- This doesn’t mean “the person speaking automatically wins” any more than “you have a right to trial by jury if you’re charged with a crime” means that you have a right to be found not guilty.
- We have to apply the relevant First Amendment test to determine if the speech falls into the incitement exception to the First Amendment.
Published December 30, 2022
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